Fabric of Law During Surrogacy

While commercial surrogacy is legal in India, the process and participants face dilemma and emotional distress on parenthood, surrogacy and legal requirements on infertility treatment using surrogacy process. The commercial surrogacy is legal in India since 2002. Studies establish the number of surrogacy babies born in India to 1500 in 2010.

Indian surrogates are preferred with infertile couples in industrialized nations because of the relatively lower cost. The complete package cost on infertility treatment with use of surrogates is approximately 1/3 of similar treatment is UK, considering the cost of fertilization, the surrogate’s fee, delivery of the baby at a hospital, the costs of flight tickets, medical procedures and hotel accommodation or leased accommodation for Intended parents and surrogate. The Indian Council of Medical Research and Ministry of Health and Family Welfare have put together The Assisted Reproductive Technologies (Regulation) Bill 2010 that is expected to be introduced in Parliament for approval and enactment.

The following stipulations regulate the commercial surrogacy and selection of surrogates for domestic and international clients:

• The surrogates must be in the age group of 21-35.
• No surrogate candidate should undergo implantation cycles more than three times for a couple.
• A married woman applying for a surrogate role must obtain the consent of her spouse.
• Only a citizen of India can be considered for surrogacy as surrogate.
• Surrogate mother must renounce all parental rights over child. Parents must accept the child born of the surrogacy.
• If the surrogate mother is married when she participates in the surrogacy program, her husband signs a written, notarized consent, where he agrees that his wife takes part in the surrogacy program. He acknowledges that she has his support and he will not have any claims for the paternity of the child delivered by the surrogate mother.
• IVF is separated from surrogacy requirements that are outsourced to specific agency or ART clinic.
• The parenthood of the surrogacy baby during and after surrogacy is governed by following conventions and legal arrangement.
• India has recently introduced a policy whereby intended parents will need to travel on a Surrogacy Visa.
• Arrangement are made to ensure a face-to-face discussion before surrogacy therapy, to establish a connect between the Intended parent and surrogate. This step works-out in most arrangements, to reduce the degree of stress on the Intended couple and especially on the surrogate mother.
• The main issue in instances of surrogacy arrangements is generally parenthood and, therefore, citizenship of the surrogacy baby.
• When a woman agrees to carry a child to term for another individual, who then becomes the legal parent of the child at birth, it is called surrogate parenthood.
• The surrogate mother relinquishes her parental rights, the moment the child is born.
• The biological father automatically becomes the legal father, while the non-biological parent adopts the child.
• Drafting a surrogacy contract, or agreement, is crucial and can prevent serious legal problems down the road. A surrogacy agreement should provide protection on the possible adverse psychological effects on the child, due to surrogacy
• Pre-surrogacy notarized legal agreement, assures that the relation of the surrogated mother to the child, is nothing but womb leasing or womb for rent.
• The specific exit visa formalities and other legal guidelines before, during and after baby birth through surrogacy, safe guard the interests of the surrogacy baby.

Difference in International Laws on Surrogacy and Parenthood

There is a difference in International laws, on parenthood status of surrogacy baby born from surrogacy therapy for foreign married couples, married for two years or higher.

• International Law e.g. Australian law that is shared by most western nations provides motherhood status to surrogate on surrogacy baby. Accordingly the Intended parents enjoy no legal relationship with the child, since a surrogate provides birth to baby irrespective of the father’s identity. The Australian law enforces a requirement on Intended parents to adopt the surrogacy baby. As such the surrogacy baby born from surrogacy clinic based in India enjoys Indian nationality and requires an adoption by intended parents to complete the intended surrogacy arrangement.
• Indian law, on the other hand, would consider the Australian couple to be the parents and, therefore, surrogacy baby would hold Australian citizenship.
• These issues are resolved through an arrangement in surrogacy agreement to consider Intended parents as legal parents during and after surrogacy.
• The exit visa stipulation for the surrogacy baby in India provides to cover these differences in International Law, on surrogacy, with an undertaking of Intended parents to safe guard interests of the surrogacy baby. Additionally the surrogacy treatment is verified in terms of obtaining a no objection certificate, birth certificate, embryology letter from ART Clinic, a FFRO/FRP approval on surrogacy and child birth along with undertaking for Intent parent to take responsibility for surrogate baby’s care and baby’s future.

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